Frankly, I'm not sure what irks me more; the implication that the Attorney General of the United States considers that there is an "extraordinary circumstance" in which, without a declaration or war, without determining that you are in arms against the United States, but through secret evidence secretly reviewed that you or I may be executed without arrest, without charge, without trial, and without sentence, or the extraordinary slippery weasel-speak that said Attorney General uses to deliver this pronouncement.
Of course this would be an "extraordinary circumstance". That's the entire point. At present a U.S. citizen in Yemen or Pakistan accused of being an "al Qaeda leader" can - and has - been killed without legal recourse or any hope of pursuing such recourse. No, duh; his first fucking hint that he's on the Kill List is Mister Hellfire Missile sailing in through the bathroom window. We know that.
And the President of the United States has the absolute authority to kill without trial an American citizen in armed rebellion against the United States. There's a reason that the Army of the Potomac showed up at Antietam and not the Attorney General; the fucking Rebs were looking for trouble at the end of a Springfield and they found it in spades. That's what happens to rebels in arms. We know that, too
The question Paul was asking - and keep in mind that I yield to no one in my estimation of the Paulites as semianthropoid gomers and in this case Paul's question was both intended as a "gotcha" and poorly phrased, to boot - was aimed directly at the gray area between the two.
Given that we don't seem to, either as a nation or as We the People, have problems with killing "them" over "there" but do have qualms about extrajudicial murder of "us" "here"...what happens if one of "us" "here" might - might - turn out to be one of "them" in the same way "they" are eligible for a missile-o-gram from Uncle Sugar? Not taken in arms. Not planting a bomb. Not in active combat. But accused by some unnamed informer of being a "person(s) he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?"
For all that we have beavered away at our own protections under the law since 2001 it has always seemed to me that there is and should be a simple bright line defining the fundamental relations between a citizen of the United States and the U.S. government and between peace and war.
And that is, if that citizen is not openly in arms against that government, is located where the agents of conventional law enforcement may apprehend that person, and has not been convicted in open court of treason or proved beyond a reasonable doubt to be a rebel or an agent of a power at war with the United States, then that citizen has not forfeited the protections of the law. And if they wish to do harm to that citizen then it is incumbent on the U.S. government and its agents to do everything in their power to do that harm as they are required to do by the Constitution and federal statute.
And, if Holder and his department believe this to be true, then the answer to the question Paul should have asked is simple; No. No, I do not have the authority to summarily execute or otherwise do extrajudicial harm to this person, regardless of what "extraordinary circumstances" exist.
Instead, what Holder appears to be doing is doubling down on the precedent of Korematsu (a precedent that his own department had previously determined to be based on official error); that in times of danger the U.S. government is free to act in contravention of its own law, regardless of the fragility of the evidence (or the lack of evidence), to harm its own citizens.
Our government has done great harm to us citizens in times of crisis; indeed, one of the reasons that wars and emergencies are greatly to be feared is that they afford great opportunity for frightened or ambitious men to do great harm to the rule of law. But in the main our government has, upon reflection, been willing to admit that such harm WAS harm. Our courts have ruled against those actions, and later administrations have disavowed them.
This opinion appears to, instead, insist on the right to do such harm.
And whether it is done with a missile or with a knife, I cannot find that reassuring.
(h/t to Pierce for the original article and the link to the Holder document)